88.19

OPINION NO. 88-19

An advisory opinion has been requested concerning whether the Director of the Office for Children and Youth may continue to provide certain contractual services to the federal Social Security Administration. We advise the Director that this work would be allowable, provided it continues to involve solely in-house activities of the federal agency, and does not bring the Director into any contact with local children's groups with which she may interact in connection with her State duties.

The Office for Children and Youth is an agency within the Executive Department. Its Director is appointed by and serves at the pleasure of the Governor and is responsible directly to him. Its role is to assist agencies, local governments, and organizations to carry out functions relating to children and youth effectively and economically. It also helps families and the general public learn about programs and services for children and youth. The Office also administers the Children's Trust Fund. This is a grant program established in 1987 to provide grants for: 1) developing, assisting, implementing, or evaluating innovative child abuse and neglect prevention, treatment, or education programs; and 2) operating innovative support programs for parents, families and abused or neglected children. Grants are made by the Director based on the review and recommendations of a grant review panel.

In addition to responsibilities for the Children's Trust Fund, the Director's duties include: responsibility for general administration of the Office; examination of available public and private programs for children to identify inefficiencies and needs and to evaluate effectiveness; review of children's program plans and budgets of State departments and agencies, and review of the children's and related programs in the Governor's budget; review of the funds available from State, local and federal sources for children's programs, and provision of recommendations to the Governor and other State agencies as to planning and expenditures for children's needs. The Director also serves as a liaison with State departments and local children's councils and child advocacy groups as to coordination and maximization of resources in developing programs for children, and carries out public information and education programs regarding children's services in Maryland.

Prior to becoming Director of the Office, she served as a full-time consultant to the federal Social Security Administration. This is the federal agency that administers the Old Age and Survivors Insurance System as well as the Medicare program. It is also responsible for certain disability and other benefits programs. Social Security Administration is a very large agency with regional and local offices and employees in cities and population areas of any significant population. As a full-time consultant to the Administration, the Director worked on developing programs directed at the morale of these employees, particularly in the area of managing family responsibilities and coordinating them with employment obligations to the Administration. The programs on which she worked were not directed to the public generally or to the substance of the various programs administered by the Administration. The Headquarters Office of the Administration is located in Baltimore and there could thus be significant Maryland activity in this program.

One of the projects with which the Director was involved for the Administration was in setting up a day-care resource and referral system for Administration employees. It involved a one-year contract between the Administration and a vendor which operated a nationwide 800 number to which employees throughout the Administration's national system had access. The vendor also had between 50 and 60 subcontractors in various States. Employees who call the number are given advice regarding child-care possibilities, and 3 possible referral sources in their area. The Director assisted in the development of the current system and in selection of the prime contractor. She also worked before she left the Administration on the Request for Proposals (RFP) for selection of a long-term vendor.

The current subcontractor in Maryland is an entity that is involved in Maryland legislation and public policy in this area through two registered lobbyists, and through other substantial activities in the field of child welfare and youth programs in general. The Director indicates that the Administration did not and does not intend in the contract review to evaluate the subcontractors proposed to be used by bidders, and that she has not had and would not anticipate having any direct dealings with a subcontractor under this program. At the time she left the Administration in mid-March, the RFP had not been issued, and she has not had any involvement in the Administration's further review or processing of the long-term contract action. The Director worked generally with the Administration on other employee morale issues, including those relating to work/family problems and relationships. An example is a pilot project being developed in an Administration regional office to assist employees in addressing problems related to the care of elderly family members.

This request involves the Director's interest in continuing to be available as a consultant to the Administration on an intermittent and infrequent basis on the same projects and subjects on which she worked in this prior employment. She indicates that she would anticipate being called by the Social Security Commissioner to provide advice on a particular issue or perform a particular limited service in connection with one of these programs. For example, she might be asked to spend a day doing a telephone survey regarding an issue raised as to the functioning of the child-care resource program; or she could be asked to evaluate data collected by others regarding the operation of the child-care resource network.

The Director would not expect to be reviewing or evaluating prospective vendors or to be working in the ongoing child-care resource program in any continuing way, estimating that she would expect to be called upon only three or four times between now and January. She would do the work either on evenings or weekends or using State annual leave time. The Director's liaison in the Office of the Governor indicates that she would generally not have a problem with this consulting work if it related solely to other States and did not involve in any way entities in Maryland with which the Director would be expected to deal. She would, however, have some concern if the work were to involve, for example, an activity that would relate to evaluation or other interaction with Maryland special interest groups in this field, with which she would be expected to have a variety of dealings.

This situation raises questions primarily under the outside employment prohibitions of §3-103(a) of the Public Ethics Law (Article 40A, §3-103(a), Annotated Code of Maryland, the Ethics Law). Subsection (a)(1)(i) of this provision deals with employment with an entity that contracts with or is under the authority of one's agency, and would not appear to be an issue here. The Administration is a federal agency that deals with State government primarily through the Department of Health and Mental Hygiene (Medicare) and the Department of Education (disability payments). It appears to have no funding or other contractual relationships with the Office for Children and Youth, nor would it seem to be in any way under the Office's authority.

Subsection (a)(1)(ii) is a more generally applicable prohibition that bars any other employment that would impair the individual's impartiality or independence of judgment. It could apply to employment activities with federal agencies, even where there is no contractual or authority relationship. In applying this provision, we have generally looked to the nature of the private and official duties to determine whether there is any relationship between the two that would result in an impact of the person's effective and impartial fulfillment of State duties.

The Director's proposed consulting with the Administration, through a continuation of her prior work with it, would entail some work in connection with availability of child-care, which is a subject matter with which she is involved in her responsibilities as Director of the Office for Children and Youth. If her consulting duties were to involve any direct interaction with Maryland child-care groups or their competitors, we would be concerned about the possible impact this would have on her dealings with the same groups as part of her official duties as Director of the Office. There does not, however, appear to be a direct connection between the programmatic goals of the Administration and the State's programs relating to children and youth.

We therefore believe that there would be unlikely to be any impact on her State duties resulting from her continuing to provide services to the Administration, if she avoids any activities on behalf of the Administration that would require her evaluation, negotiation, or any other interaction with the Maryland subcontractor under the Administration's child-care network program. Her service with the Administration would thus be allowable, as long as she and the Administration undertake to ensure that she is not assigned any tasks that would be inconsistent with these conditions.

M. Peter Moser, Chairman
    William J. Evans
    Rev. C. Anthony Muse
    Betty B. Nelson

Date: August 2, 1988